The Progress Report Misrepresents the Justice Reform

Last week, the European Commission published its 2018 Progress Report on Albania. These reports are basically a representation of data provided by the Albanian government, filtered through the wishful thinking of the European Commission. Despite Prime Minister Edi Rama’s posturing that this report represents the incontrovertible facts about the Albanian situation, the past has shown that this quintessentially political document undergoes quite a number of changes through the European Parliament before it arrives at the European Council for a final decision. This decision was initially expected in June, but the fall now seems a more reasonable estimate, as several national parliaments in EU member states don’t have the time to review the Progress Report before the summer break.

What is worrisome is that the 2018 Progress Report is a product of what in a previous article I have called the “justice reformism,” an irrational belief in the progress and success of the Justice Reform, which warps reality in such a way that it fits the reality desired by the European Commission. This is, like a religious delusion, dangerous when applied in the political sphere.

Let us first pick out the incorrect statements:

1) p. 14: “All the vetting priority cases were finalised in first instance and a number of appeals were also completed”: The vetting priority cases have not been finalized. The dossier of SPAK and Constitutional Court candidates (all priority cases) were only opened this year, while the Independent Qualification Commission (KPK) has only recently started processing dossiers opened in May 2018.

2) p. 15 “The vetting institutions have continued to build their investigations on the basis of the three pillars provided for in the law”: The KPK’s own report has shown that it has not based their investigations on “the three pillars.”

3) p. 17 “The new Justice Appointment Council [KED] has set in motion the process to appoint the eight vacant Constitutional Court judges, as well as of the High Justice Inspector”: The Constitutional Court currently consists of 1 judge, whose term has officially ended. Therefore 9 new judges are needed. The KED has started the procedure for only 6 judges, those approved by Parliament and the President. This will lead to a skewed and easily politicized Constitutional Court. Meanwhile, the KED is incomplete, missing two key members.

4) p. 17 “The responsibilities of the temporary General Prosecutor are limited under the law”: Perhaps the biggest untruth of all. Albanian law knows no “Temporary General Prosecutor,” only Deputy General Prosecutor and General Prosecutor. Temporary General Prosecutor Arta Marku herself has admittedpublicly that she operates with the full powers given to the General Prosecutor under Albanian law. These are not “limited” in any way, and should prohibit her from being reelected to a second term as General Prosecutor.

5) p. 19 “These results have been crucial to restoring public trust in the judiciary”: According to one of the oldest independent civil society organizations in Albania, the Helsinki Committee, 63% of Albanians doesn’t believe the vetting will bring justice, an EU poll showed nearly 50% of Albanians was uninformed or negative about the Justice Reform. There are no comparative data showing an increase in public trust since the beginning of the reform.

6) p. 21 “The process [of installing SPAK] is advancing based on the foreseen legal deadlines”: See below under 7). The process of installing SPAK has violated every single Constitutional and legal deadline, simply because the High Prosecutorial Council (KLP) was installed in violation of those deadlines.

Now the euphemisms:

7) p. 14 “The outcome of thorough vetting has affected the pace of setting-up the new judicial institutions”: The pace has not been merely “affected”; every single Constitutional and legal deadline for the Justice Reform has been violated, with extremely detrimental effects for the functioning of the judiciary. Moreover, this was not caused by “thorough vetting,” but rather by a legal framework that was blind to reality, a Constitutional Court that had all the right to exercise its Constitutional functions, and drastic reductions in the government budget for the Justice Reform, which continue to plague all new judiciary governance institutions.

8) p. 17 “However, the School [of Magistrates] continues to rely heavily on donors’ support and has limited capacity in terms of premises, academic staff, and qualified specialised trainers. […] The School of Magistrates has not managed to attract enough candidates, resulting in only 10 candidates passing the entry exam for the academic year 2018/19. […] The newly formed High Judicial Council and High Prosecutorial Council set the number of candidates to be admitted in the 2019/20 academic year at 75. The first 53 have already been selected”: If the current trends persist, in the coming 8 years that the vetting will take 400 magistrates will have to be replaced. This means 50 people need to graduate from the School of Magistrates each year as of last year. Instead, from 2018/19 only 10 passed the initial test, and for 2019/20 the test results were not included in the report (it is unclear wether 53 were only “selected” or also passed the entrance exam). Furthermore, these students do not have enough qualified teachers, no proper building, and not enough funding. This is a disaster in waiting, which will have far-reaching effects. The success of the Justice Reform depends on these graduates. Furthermore, hiring 50% of the new magistrates from a single generation may result in problems both in terms of aligning the judiciary with societal developments in the next 50 years because of skewed age distribution, and it will also result in enormous hiring problems 30–40 years from now, when this entire generation will retire.

9) p. 20 “it should be noted that eight out of nine Constitutional Court judges and 15 out of 18 High Court judges have been dismissed through the vetting or have resigned. This represents a significant number of cases involving high-level state officials”: This is an attempt to spin the result of the vetting as successes in the fight against corruption. The vetting is not a criminal but an administrative proceeding, and only one of those “high-level state officials” has actually been convicted for hiding his assets. It is therefore disingenuous of the European Commission to lump all the dismissed magistrates under the header “fight against corruption.”

Funny omission: the Progress Report fails to mention the only high-level court case against a former minister, in fact one of the few successes that could be actually reported: the case against former right hand of Prime Minister Edi Rama, Saimir Tahiri, for drug trafficking and corruption.